COURT UPHOLDS DOG-SNIFF CASE'S VERDICT

The state Supreme Court once again has gone to the dogs -- revisiting the question of whether a canine's sniffing for drugs amounts to a search under the state constitution.

Once again, the high court has stopped short of answering the question, saying other factors made a constitutional ruling unnecessary.

The 4-1 ruling released Friday upholds the conviction of Jamison Martin Waz of Cromwell for possessing more than 4 ounces of marijuana.

Waz came into possession of the marijuana in an Express Mail package addressed to Down Deep Inc., bearing a Cromwell address. Unbeknownst to Waz, the package first had been scrutinized by a veteran postal inspector, sniffed by a dog named Zak, made the subject of a federal search warrant and then carefully opened and resealed by postal inspectors. (Its half-pound contents had tested positive as marijuana.)

Waz picked up the package from the Shunpike Road address where it was delivered at 2:28 p.m. March 24, 1994. Narcotics officers and postal inspectors watching Waz meticulously recorded the time, then arrested him a bit farther down the road. The Express Mail package was on the passenger side floor of his vehicle.

Waz tried unsuccessfuly to bar prosecutors from using the marijuana as evidence against him, claiming police needed a warrant before subjecting the package to a dog sniff. He entered a plea of no contest to the charges, on the condition he could withdraw it if his appeal of the dog sniff succeeded. It didn't.

The case marks the second time in three years Connecticut's highest court has confronted claims that a dog sniff amounts to a search under the state constitution, requiring officers to first obtain a warrant for that search or face suppression of the evidence at trial.

Connecticut's Supreme Court, like its counterparts in other states, historically have avoided making new constitutional law if an issue can be resolved some other way. Justice Richard N. Palmer, writing for the majority in the Waz case, noted, "We generally will not consider a constitutional question unless its resolution is absolutely necessary to the case."

The court found that postal inspector Thomas Lambert had ample reason to suspect the Express Mail package contained contraband because it fit a "drug package profile" developed by the U.S. Postal Service. Lambert testified the Down Deep package was taped around all its edges to seal openings; it bore a fictitious return address; its labels were handwritten, and it came from a "source state" -- California.

Justice Robert I. Berdon in his strongly worded dissent scoffed at the profile, saying "Millions of packages meet these criteria." Berdon wrote that the majority's ruling allowing police "to conduct a search of a person's personal effects for contraband by way of the sniff of a dog, dangerously leads us down a path that undermines the foundation . . . of our state constitution prohibiting unreasonable searches and seizures."

The majority ruled that Lambert's suspicion was sufficient basis to call in Zak, a Connecticut State Police dog trained to sniff out drugs. Zak's "alert" that the package contained drugs was the basis, or probable cause, used by Lambert to obtain a federal search warrant for the package.

In that context, Palmer wrote, the dog sniff "does not run afoul of constitutionally protected privacy rights."

Three years ago, the state Supreme Court upheld the drug conviction of a man whose car was stopped by police who had learned from a highly reliable informant that the driver was transporting drugs. After the car was stopped, a drug-sniffing dog was walked around the vehicle and detected drugs.

Palmer likened that case to the present one, in which police had strong reason to suspect drug trafficking before the dog was brought in.